Clause 10 - restraining orders: England and Wales
Domestic Violence, Crime and Victims Bill [Lords]
9:10 am
Mr Dominic Grieve (Shadow Attorney General, Home, Constitutional & Legal Affairs; Beaconsfield, Conservative)
Clause 10 deals with the Government's intention to provide restraining orders that should be capable of being made on acquittal as well as on conviction, as they are at present. In addition, the Government intend to widen the conditions under which restraining orders may be made after conviction to cover conviction for any offence and not just a category of offence, as at present.
Amendment No. 10 is probing and is designed to find out from the Government whether the Bill's drafting will achieve the exact aims that the Government intend. As matters stand, my understanding is—the Minister will correct me if I am wrong—that a restraining order made after conviction is made of a court's own motion when the judge decides that it is appropriate to do so. So far as I am aware, no further evidence that could go towards the making of that order is adduced in court following a conviction. I had a look at the Protection from Harassment Act 1997, and nothing in it suggests that such a provision would be possible. If I am wrong about that, I would be grateful to be corrected.
In providing alterations to restraining orders on conviction, the Government have first, under clause 10(1), widened the scope of the offences to all offences for which a restraining order can be made. They have then added subsection (2), which states:
''Any person mentioned in the order is entitled to be heard on the hearing of an application under subsection (4).''
That raises two questions. First, do the Government wish the present format to continue, whereby only the court of its own motion can make the order? With restraining orders on acquittal, the possibility exists for the prosecution to make an application. Should it not therefore be for the prosecution, as well as the court, to make an application after conviction?
Secondly, what provision exists if an application is being made after conviction for further evidence to be adduced if necessary, in the same way as would happen after acquittal? Should not we ensure that the provisions after conviction and after acquittal are identical? Have the Government got the wording right to achieve that objective? If they do not intend to achieve that objective, and their view is that the procedure after conviction and after acquittal can be wholly dissimilar, I would be grateful to know why. For example, where someone is convicted of an offence of violence and more material could be placed before the court about the violence that he had done to a member of his household that had not been adduced in the main trial, because, for some reason, it had to be excluded, would it not be desirable for the prosecution
to be able to say, ''We have some more evidence that we want to present as a reason for making a restraining order under the Protection from Harassment Act 1997''? Under the Government's proposals, that could happen after an acquittal, but I do not think that it could happen after a conviction. That is the nub of amendment No. 10.
Amendment No. 12 is mainly consequential. Amendment No. 11 is designed to make it clear that evidence can be led by the prosecution and the defence after acquittal in relation to the making of an order. New section 5A may provide for that to happen anyway, but I am not certain that, as it is drafted, it ensures that that is the case. I seek an assurance that the Government have noted those points; if the clause requires some amendment, it could be usefully amended along the lines that I have proposed.